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Significant Decisions Report Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided. The Significant Decisions Report is published in Voice for the Defense thanks to a state grant from the Judicial and Court Personnel Training Fund, administered by the Texas Court of Criminal Appeals. Fifth Circuit United States v. Brown, 571 F.3d 492 (5th Cir. 2009) The Fifth Circuit’s appellate reversal in United States v. Brown, 459 F.3d 509 (5th Cir. 2006) (“Brown I”) did not create a double jeopardy bar to the prosecution of defendants; Brown I overturned the jury verdict because one of the theories of wire fraud liability submitted to the jury (on the deprivation of hon est services) was legally defective; the opinion did not, on its face, preclude retrial on the remaining theories of liability; defendants’ remaining challenges were not double jeopardy challenges and hence were not cognizable upon this interlocutory appeal, which was limited only to the nonfrivolous dou ble jeopardy issue. Cynthia Hampton TIm Crooks United States v. Doublin, 572 F.3d 235 (5th Cir. 2009) When reducing a sentence pursuant to 18 U.S.C. §3582(c)(2) (based upon a retroactively ap plica ble amendment to the Sentencing Guidelines), a district court may not impose a sentence below the minimum of the reduced Guideline range; although, after United States v. Booker, 543 U.S. 220 (2005), the Guidelines are only advisory in full sentencing (or resentencing) proceedings, a reduction un der 18 U.S.C. §3582(c)(2) does not constitute a full resentencing; rather, it is simply a sentence mod i fi ca tion which may permissibly be limited and, in fact, is limited by the constraints imposed by §3582(c)(2) and USSG §1B1.10, which is incorporated by reference in the statute; by referencing the Guide lines, these provisions do not reimpose a mandatory Guidelines scheme in violation of Booker; rather, the Guidelines serve merely as a (permissible) limit on the extent to which a sentence may be re duced subsequent to its having been imposed previously; neither the Sixth Amendment nor Booker pre vents Congress from incorporating the Guidelines as a means of defining and limiting a district court’s authority to reduce a sentence under §3582(c)(2) (noting a circuit split with the Ninth Circuit’s decision in United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007)). United States v. Dison, ____ F.3d ____, 2009 WL 1759029 (5th Cir. June 23, 2009) Pursuant to 18 U.S.C. §3147 and USSG §3B1.3, a defendant is subject to an enhancement for com mitting an offense while on release even if the defendant, while on release, commits only the offense of failure to appear, in violation of 18 U.S.C. §3146; this did not expose defendant to multiple pun ish ments in violation of the Double Jeopardy Clause, or constitute impermissible double-counting under the Guidelines, because the cumulative punishment was clearly intended; the Fifth Circuit did agree with the D.C. Circuit (see United States v. Samuel, 296 F.3d 1169, 1175 (D.C. Cir. 2002)) that, not with standing statutory language seemingly to the contrary, the §3147/ §3B1.3 enhancement could not result in a total sentence greater than the statutory maximum for the underlying offense from which the defendant was released. Leal Garcia v. Quarterman, ____ F.3d ____, 2009 WL 1800141 (5th Cir. June 24, 2009) Where death-sentenced Texas defendant filed a second habeas petition—in which he challenged Texas’ failure to comply with (1) the International Court of Justice’s ruling in the Avena case (finding, among other things, that Texas had violated defendant’s rights under the Vienna Convention) and (2) President Bush’s response to that ruling—the federal district court erred in dismissing the petition
as an unauthorized successive habeas petition that it had no au thor ity to hear; if a purported defect existed, or a claim was ripe, at the time of the prior petition, the later petition is likely to be held successive even if the legal basis for the attack was not; if, however, the purported defect did not arise, or the claim did not ripen until after the conclusion of the previous petition, the later petition based on that defect may be non-successive; here, because the defendant challenged only Texas’ failure to comply with Avena and President Bush’s directive to implement Avena, which occurred well after the conclusion of the proceedings on de fen dant’s first petition, defendant’s second petition was not suc ces sive; thus, the district court erred in dismissing the second petition for lack of jurisdiction; however, because the second pe ti tion failed on the merits in light of the Supreme Court’s de ci sion in Medellin v. Texas, ____ U.S. ____, 128 S. Ct. 1346 (2008), the Fifth Circuit affirmed the judgment of dismissal, al beit now with prejudice; the Fifth Circuit did, however, vacate the district court’s alternative merits determination based upon an erroneous assumption of “hypothetical jurisdiction.” Propes v. Quarterman, ____ F.3d ____, 2009 WL 1813192 (5th Cir. June 26, 2009) Panel held that the law-of-the-case doctrine did not prevent it from revisiting whether defendant’s federal habeas petition was successive—a question resolved against defendant by a previous panel in the course of denying defendant authorization to file a successive petition; however, on the merits, the second panel again held that the petition was successive because the matters raised therein (attacking his Texas state murder conviction) could have been raised in his first federal habeas petition (which, how ever, challenged only a prison disciplinary proceeding); the Fifth Circuit reached this conclusion notwithstanding the fact that the form defendant used for his first federal habeas petition sug gested he could challenge his judgment of conviction and sen tence, or a disciplinary proceeding, but not both at the same time; notwithstanding this form, defendant, even though a pro se litigant, was still held to the procedural requirement that all avail able claims must be brought in the first federal habeas petition; accordingly, the Fifth Circuit affirmed the district court’s dis missal of defendant’s habeas petition as successive. Paredes v. Quarterman, ____ F.3d ____, 2009 WL 1911037 (5th Cir. July 6, 2009) Death-sentenced Texas defendant was entitled to a certificate of appealability (“COA”) on the issue of whether his federal con stitutional rights were violated by the failure to require the jury to agree unanimously as to precisely which two or more of the four decedents he could be held responsible for killing (defen dant was charged with capital murder under Tex. Penal Code §19.03(a)(7), the “murder[ing] more than one person” prong of the Texas capital murder statute); the Fifth Circuit also granted a COA on the issue of whether trial counsel was in ef fec tive for failing to object to the lack of such a unanimity instruction. Brooks v. Kelly, 579 F.3d 521 (5th Cir. 2009) District court erred in granting federal habeas relief, based upon three alleged grounds of ineffective assistance of counsel, to Mississippi state prisoner convicted of selling oxycodone and hydromorphone; counsel was not ineffective for failing to object to two colloquies in which state witnesses referred to defendant’s selling drugs on other occasions, because the col loquies were admissible under state law; nor was counsel in ef fective for failing to appeal the denial of a limiting instruction concerning character evidence, as the trial court appears to have been correct under Mississippi law in refusing to grant the instruction defendant sought; nor were the Mississippi courts un reasonable in concluding that counsel was not deficient for fail ing to challenge, on appeal, defendant’s sentence as excessive, given that defendant’s sentence did not present the rare circumstance where such an appeal might be successful; accordingly, the Fifth Circuit reversed the district court’s judgment granting the writ of habeas corpus. United States v. Whitelaw, ____ F.3d ____, 2009 WL 2515670 (5th Cir. Aug. 19, 2009) District court did not plainly err in imposing a 36-month sen tence, to run consecutively to any other state or federal sentence; defendant did not show that the district court believed it was without discretion to impose the sentence to run con currently with other sentences; nor did defendant’s original plea agreement, which required the original sentence to run concur rently with defendant’s state sentence, compel concurrent sen tenc ing upon revocation of supervised release; nor did the dis trict court fail to consider the policy statements contained in Chapter 7 of the Sentencing Guideline, since the court and the parties referenced the Chapter 7 advisory imprisonment range in the discussion about what sentence should be imposed; fi nally, reversal was not required on plain-error review for the dis trict court’s failure to state reasons for its 36-month sentence, which was well outside the advisory Guideline range of 4 to 10 months; although this was error that was clear or obvious, defen dant could not show that the error affected his substantial rights; noting that some circuits have not required defendants to show an effect on the sentencing outcome for this type of er ror, the Fifth Circuit nevertheless found that defendant’s substan tial rights were not affected because, although not explicitly stated, the reasons for the district court’s sentence were apparent from the record, particularly from the government’s motion to revoke, which the district court granted and whose sentencing rec om men da tion the district court followed; nor did the district court’s error affect the fairness, integrity, or public reputation of judicial proceedings; finally, the sentence was not, on plainerror review, substantively unreasonable; accordingly, the Fifth Circuit affirmed the sentence.
Page 1 and 2: VOICE FOR THE DEFENSE Volume 38 No.
Page 3 and 4: Contents g __ Features F~.ttU[b, g
Page 5 and 6: Benefits . . . “Something that pr
Page 7 and 8: CLE & Events . . . Providing legal
Page 9 and 10: or until after the next legislative
Page 11 and 12: We have taped a one-hour legislativ
Page 13 and 14: en sur ing that it is carried out c
Page 15 and 16: F. R. Buck Files Jr. The Fifth Circ
Page 17 and 18: [The 2000 Rule] By 2000, the BOP ha
Page 19 and 20: nipples) on several occasions as we
Page 21 and 22: Throughout the past 30 years, we ha
Page 23 and 24: . . . Additionally, the district co
Page 25 and 26: ased on those same circumstances, t
Page 27 and 28: Name: ~~~&bi~C}~ lLJttl Annual T ex
Page 29 and 30: I. Introduction There is no aspect
Page 31 and 32: op er a tion of a motor vehicle or
Page 33 and 34: son ably trustworthy sources were r
Page 35 and 36: ments were sworn.” In Sullivan v.
Page 37: Summit February 24, 2010 Austin Pre
Page 41 and 42: a cial discrimination in jury selec
Page 43 and 44: Death Writ Ex parte Woods, __S.W.3d
Page 45 and 46: (c) The search and seizure of the f
Page 47 and 48: .Fecler:a.l.1ilw Federal Law ill at

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